On April 23, 2010, Arizona's Republican governor, Jan Brewer, signed into law a bill deputizing state police to check with federal authorities on the immigration status of criminal suspects whose behavior or circumstances seemed to indicate that they might be in the United States illegally. The heart of the law was this provision:
"For any lawful contact [i.e., instances where an officer questions or detains someone who has violated some law, usually a traffic infraction] made by a law enforcement official or a law enforcement agency … where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person."
Leftist civil-rights advocates instantly denounced the legislation as a “racist” bill that would punish Hispanics, create a police state, and trample on the Constitution. Cardinal Roger M. Mahony of Los Angeles said the authorities’ ability to demand documents was akin to “Nazism.” Likewise, Democrat Chicago alderman Daniel Solis said "what has happened in Arizona is very similar to what happened in Nazi Germany." President Obama, complaining that the "misguided" law would “undermine basic notions of fairness,” ordered the Justice Department to find some way to challenge its standing. Attorney General Eric Holder considered a constitutional challenge.
In reality, the Arizona law was only a mirror image of long standing U.S. federal law. To prevent abuse or racial discrimination, the Arizona statute included provisions explicitly banning racial profiling. Given that most of Arizona's illegal immigrants hailed from neighboring Mexico, however, it was inevitable that a majority of those targeted by the law would be Hispanic. But journalist Jacob Laksin put this concern in proper context, writing: "That says more about the demographics of illegal immigration than the allegedly discriminatory agenda of Arizona authorities."
The Arizona law also required residents to carry ID or immigration-registration documents at all times. To critics opposing such a policy, Byron York pointed out the following in the Washington Examiner:
"In addition to the [many] situations requiring a driver's license, some people might not know that since the 1940s, federal law has required non-citizens who are in the United States permanently to carry on their person, at all times, the official documents proving that they are here legally -- green card, work visa, etc. That has been the law for 70 years, and the new Arizona law does not change it."
On June 17, 2010, the Obama administration announced that it intended to sue the state of Arizona over the law.
On July 28, 2010, Federal District Court Judge Susan Bolton issued a major ruling that blocked key provisions of S.B. 1070 from being implemented. These included provisions requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped; requiring noncitizens to carry registration papers; authorizing the warrantless arrest of an illegal immigrant where there is probable cause to believe the person has committed a crime that would make him eligible for deportation; and making it a crime for illegal immigrants to seek, apply for, or perform paid labor.
In rendering her decision, Judge Bolton accepted the Obama administration’s theoretical argument that “the power to regulate immigration is vested exclusively with the federal government, and the provisions of S.B. 1070 are therefore preempted by federal law.” She also accepted the administration’s argument that it was the federal government’s role to enforce immigration laws, without addressing the fact that the existing enforcement regime had been largely ineffective. Moreover, without waiting to see how the law would actually have been enforced, Bolton agreed with the Justice Department's prediction that “it will result in the harassment of lawfully present aliens and will burden federal resources and impede federal enforcement and policy priorities.”
The Obama administration and advocates for illegal immigrants were very pleased with Judge Bolton's ruling. Arizona Governor Jan Brewer, by contrast, called the decision “a temporary bump in the road” and vowed to appeal.
In March 2011, Utah Governor Gary Herbert signed into law a bill similar to Arizona's.
On April 11, 2011, the U.S. Court of Appeals in San Francisco upheld Judge Bolton's July 2010 ruling vis a vis Arizona.
Also in April 2011, the Georgia legislature passed a bill authorizing police to verify the immigration status of people suspected of certain crimes, and to arrest those who are in the United States illegally. The Georgia law also required businesses with 10 or more employees to consult a federal database to verify that new hires are eligible to work in the U.S.
As of April 2011, more than 20 states had introduced legislation similar to Arizona's. But the legal challenges in Arizona had caused most of those states to delay passing the measures. Ann Morse, program director at the Denver-based National Conference of State Legislatures, explained: “States are unlikely to go forward while the law is enjoined in court.”
By the fall of 2011, Justice Department lawyers had sued to derail not only Arizona's immigration law but also a similar bill that was passed in Alabama. Moreover, federal lawyers were talking to Utah officials about a third possible lawsuit and were considering legal challenges in Georgia, Indiana and South Carolina. “I don’t recall any time in history that the Justice Department has so aggressively challenged state laws,” said Jonathan Turley, a constitutional law expert at George Washington University Law School.
A number of the recently enacted state immigration laws had not yet gone into effect, as the American Civil Liberties Union and other groups had obtained rulings temporarily blocking all or key parts of those laws in Utah, Georgia, Indiana, and South Carolina.
In October 2011, the 11th U.S. Circuit Court of Appeals sided with the Obama administration by blocking provisions in the Alabama immigration law which had: (a) authorized public schools to check the immigration status of students, and (b) authorized police to charge immigrants who were unable to prove their citizenship. But the appeals court let some parts of the law stand, such as: (a) the provision allowing police to check a person's immigration status during a traffic stop; (b) the provision which blocked courts from enforcing contracts (such as leases) involving illegal immigrants; and (c) the provision that deemed it a felony for an illegal immigrant to do business with the state for basic purposes such as getting a driver's license.
On October 31, 2011, the Justice Department filed a lawsuit seeking to stop implementation of a tough new immigration law that had been passed in South Carolina. The law, which was scheduled to take effect in January 2012, would: (a) require all businesses to check their new hires' legal status through a federal online system; (b) require all law-enforcement officers to call federal immigration officials if, in the course of questioning or arresting someone for a matter unrelated to immigration status, they saw evidence suggesting that the suspect might have come to the U.S. illegally; (c) make it a felony for anyone to create fake photo IDs for illegal residents; (d) create a new law-enforcement unit within the Department of Public Safety to enforce state immigration laws; and (e) make it a felony for illegal immigrants to allow themselves to be transported. According to the Justice Department, legislation requiring law officers to check suspects' immigration status was unconstitutional.
On June 25, 2012, the U.S. Supreme Court issued its long-anticipated ruling on the constitutionality of Arizona’s SB 1070. A New York Times report summarizes the major components of the decision:
The Supreme Court ... delivered a split decision on Arizona’s tough 2010 immigration law, upholding its most hotly debated provision but blocking others on the grounds that they interfered with the federal government’s role in setting immigration policy.
The court unanimously sustained the law’s centerpiece, the one critics have called its “show me your papers” provision, though they left the door open to further challenges. The provision requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if they have reason to suspect that the individual might be in the country illegally.
The justices parted ways on three other provisions, with the majority rejecting measures that would have subjected illegal immigrants to criminal penalties for activities like seeking work....
Writing for the majority, Justice Anthony M. Kennedy said, “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law.” ...
[President] Obama emphasized his concern that the remaining provision could lead to racial profiling, an issue that the court may yet consider in a future case. “No American should ever live under a cloud of suspicion just because of what they look like,” Mr. Obama said in a statement, adding that he was “pleased” about the parts that were struck down.
In her own statement, Gov. Jan Brewer of Arizona, a Republican, said she welcomed the decision to uphold what she called the heart of the law. The decision, she said, was a “victory for the rule of law” and for “the inherent right and responsibility of states to defend their citizens.”
Still, the ruling was a partial rebuke to state officials who had argued that they were entitled to supplement federal efforts to address illegal immigration....
In upholding the requirement that the police ask to see people’s papers, the court emphasized that state law enforcement officials already possessed the discretion to ask about immigration status. The Arizona law merely makes that inquiry mandatory if the police have reason to suspect a person is an illegal immigrant....
Justices Scalia and Clarence Thomas said they would have sustained all three of the blocked provisions. Justice Alito would have sustained two of them while overturning one that makes it a crime under state law for immigrants to fail to register with the federal government.
The two other provisions blocked by the majority were one making it a crime for illegal immigrants to work or to try [to] find work, and another allowing the police to arrest people without warrants if they have probable cause to believe they have done things that would make them deportable under federal law.
Portions of this summary are adapted from "Arizona vs. Obama, Round 1," by Joseph Klein (July 29, 2010).